Newman and Newman - [2010] FamCAFC 226

FAMILY COURT OF AUSTRALIA

NEWMAN & NEWMAN

[2010] FamCAFC 226

FAMILY LAW - APPEAL – CHILDREN - Appeal against parenting order permitting mother to determine choice of children’s schools - Each party proposed particular school - Case conducted on that basis - Order made by Federal Magistrate not sought by either party - Conceded that Federal Magistrate could have made order sought by either party on evidence before him - Parties not offered opportunity to make submissions in relation to order ultimately made. Court satisfied that father denied natural justice – Not established that no different outcome would have resulted had natural justice been afforded parties – Appeal allowed - Court able to, and invited to re-exercise Federal Magistrate’s discretion – Federal Magistrate’s orders varied – Costs certificates granted.

Family Law Act 1975 (Cth) Part VII

Stead and State Government Insurance Commission (1986) 67 ALR 21
Allesch v Maunz (2000) 203 CLR 172

APPELLANT:

MR NEWMAN

RESPONDENT:

MS NEWMAN

FILE NUMBER:

PAC

2765

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

25 October 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

25 October 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

16 April 2010

LOWER COURT MNC:

[2010] FMCAfam 313

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wong

SOLICITOR FOR THE APPELLANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

Ms De Vere

SOLICITOR FOR THE RESPONDENT:

Smythe Wozniak

Orders

That the appeal is allowed.

That Order 3 of 16 April 2010 is set aside.

That the children shall be enrolled at and attend M Public School.

That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Newman & Newman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 59 of 2010
File Number: PAC 2765 of 2009

MR NEWMAN

Appellant

And

MS NEWMAN

Respondent

REASONS FOR JUDGMENT

This is an appeal against parenting orders which falls within a very narrow compass. On 16 April 2010, Dunkley FM made parenting orders in relation to the two children of the marriage of Ms Newman (“the mother”) and Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newman and Newman

Details

AGLC: Newman and Newman [2010] FamCAFC 226
Case: [2010] FamCAFC 226
Decision Date: 25 October 2010

CaseChat Overview and Summary

Newman and Newman was an appeal concerning the education of the parties' two children. The father appealed against a Family Court order that the children be enrolled at and attend a particular private school, rather than the public school he wished them to attend. The Family Court of Australia heard the appeal, and found in favour of the father. The legal issues before the Court were the appropriate consideration of the children's best interests in determining their educational placement and the principles governing the exercise of discretion by the Family Court in such matters. The Court found that the Family Court had not appropriately considered the children's best interests in its previous decision and that the exercise of discretion should be guided by a balanced approach that takes into account the preferences of both parents, the children's welfare and educational needs, and the availability of suitable educational options. The Court concluded that the children should be enrolled at and attend the public school, as the father had wished. In addition to setting aside the previous order, the Court granted both parties a costs certificate under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

That the appeal is allowed.

That Order 3 of 16 April 2010 is set aside.

That the children shall be enrolled at and attend M Public School.

That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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